Citation Nr: 22017255 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 15-32 457 DATE: March 24, 2022 ORDER Entitlement to dependency and indemnity compensation (DIC) based on service connection for the cause of the Veteran's death is denied. Entitlement to accrued benefits based on a pending claim for service connection for lung cancer, to include widespread metastases to the lung, due to herbicide exposure, is denied. Entitlement to accrued benefits based on a pending claim for service connection for metastatic malignant melanoma of the left shoulder due to herbicide exposure, claimed as melanoma of the left shoulder, is denied. FINDINGS OF FACT 1. The Veteran died in June 2013. Prior to his death, the Veteran had pending claims for entitlement to service connection for lung cancer with widespread metastases to the lung from primary malignant melanoma and melanoma of the right frontal forehead and left shoulder. 2. In October 2019, the appellant was recognized as a valid substitute for the Veteran. 3. The Veteran's cause of death was listed as metastatic malignant melanoma and malignant peripheral nerve sheath sarcoma. 4. At the time of the Veteran's death, he was not service-connected for any disabilities. 5. The Veteran's cause of death was not related to his military service, to include exposure to herbicide agents therein, nor was his cause of death related to a service-connected disability. 6. The Veteran's lung cancer, to include widespread metastases to the lung, is not related to his military service, to include as secondary to herbicide exposure. 7. The Veteran's metastatic malignant melanoma of the left shoulder claimed as melanoma of the left shoulder, is not related to his military service, to include as secondary to herbicide exposure. CONCLUSIONS OF LAW 1. A disability incurred in or aggravated by active service did not cause or contribute substantially or materially to the Veteran's death. 38 U.S.C. §§ 101(16), 1101, 1110, 1112, 1113, 1310; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.312. 2. The criteria for service connection for lung cancer, to include widespread metastases to the lung, to include as due to herbicide exposure, for accrued benefits purposes, have not been met. 38 U.S.C. §§ 1110, 1116, 1131, 1133, 5121, 5107; 38 C.F.R. §§ 3.102, 3.160, 3.303, 3.307, 3.309, 3.1000, 20.1103, 20.1104. 3. The criteria for service connection for metastatic malignant melanoma of the left shoulder, claimed as melanoma of the left shoulder, to include as due to herbicide exposure, for accrued benefits purposes, have not been met. 38 U.S.C. §§ 1110, 1116, 1131, 1133, 5121, 5107; 38 C.F.R. §§ 3.102, 3.160, 3.303, 3.307, 3.309, 3.1000, 20.1103, 20.1104. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1968 to June 1971, including service in the Republic of Vietnam from January 1969 to January 1970. He died in June 2013. The appellant is his surviving spouse. See Administrative Decision received May 13, 2019. In August 2018 and December 2021, the Board remanded the case for further development. This matter has since been returned for additional appellate review. The appellant seeks service connection for the Veteran's lung cancer, metastatic malignant melanoma (melanoma), and malignant peripheral nerve sheath sarcoma (MPNS sarcoma). She contends the Veteran was exposed to Agent Orange during his military service which caused his cancers. The Veteran's death certificate indicated he died as a result of metastatic malignant melanoma and malignant peripheral nerve sheath sarcoma. As noted above, the Veteran served in the Republic of Vietnam from January 1970 to January 1971. Thus, his exposure to herbicides is conceded. The Board acknowledges that even though melanoma and MPNS sarcoma are not explicitly listed as presumptive disorders under 38 C.F.R. § 3.309(e), direct service connection may be established by evidence demonstrating that the disease was in fact incurred during service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Additionally, the Board notes the April 2013 VA examiner stated the Veteran's lung cancer started from a lesion on his forehead and metastasized to his lungs. In a May 2013 rating decision, the RO determined the Veteran's lung cancer was not considered a presumptive condition under 38 C.F.R. § 3.309(e) because the primary cancer is not considered a presumptive condition. Following the August 2018 Board remand, the RO obtained a medical opinion from a Staff Physician to address whether MPNS sarcoma is considered a soft-tissue sarcoma as named in 38 C.F.R. § 3.309(e), and if so, whether the MPNS sarcoma or any other disease caused the Veteran's death or substantially contributed to his cause of death. The Board found the VA medical opinion obtained in July 2019 to be inadequate for several reasons, including that the examiner stated MPNS sarcoma is not a soft-tissue sarcoma as described in Section 3.309(e) but failed to explain why. In addition, the examiner concluded the Veteran was misdiagnosed with MPNS sarcoma and later diagnosed with melanoma. As such, the VA examiner concluded that the melanoma caused the Veteran's death. He explained melanoma is not a presumptive condition listed under Section 3.309(e) and therefore is less likely than not connected to the Veteran's service. See December 2021 Board decision (emphasis in original). In this case, the VA examiner should have considered and discussed the specific facts of the Veteran's case and determine whether his exposure to herbicides directly caused his melanoma. Id. In the December 2021 Board remand, the Board acknowledged the private medical opinion dated October 2019 from an experienced oncologist but found it to be inadequate to address the etiology of the Veteran's lung cancer, melanoma, and MPNS sarcoma for the reasons discussed in that decision. Therefore, the Board determined that another remand was necessary to obtain an addendum medical opinion to address the etiology and nature of the Veteran's lung cancer, melanoma, and MPNS sarcoma. Id. The Board notes that in a January 2022 rating decision, service connection for MPNS sarcoma of the right frontal forehead with excision associated with herbicide exposure, for purposes of entitlement to accrued benefits, was granted. Therefore, that issue is no longer on appeal before the Board. Law and Analysis Under applicable law, a veteran's surviving spouse may receive accrued benefits consisting of due, but unpaid, periodic monetary benefits to which the veteran was entitled at death under existing ratings or decisions. The appellant has been substituted into this appeal pursuant to 38 U.S.C. § 5121A. To support a claim for accrued benefits, the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998). Additionally, a claim for accrued benefits requires that the application be filed within one year after the date of death. 38 C.F.R. §§ 3.1000(c), 3.152(b). A Dependency and Indemnity Compensation (DIC) claim would be included as an accrued benefits claim. Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a veteran if the veteran died from service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5(a). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause and must be shown to have contributed substantially or materially to death; combined to cause death; or aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather, it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312(c)(2). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. It would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). In determining whether the disorder that resulted in the death of a veteran was the result of active service, the laws and regulations pertaining to service connection apply. 38 U.S.C. § 1310. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA regulations provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active service, certain diseases are deemed service-connected. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). The Veteran had service in the Republic of Vietnam and, as such, exposure to herbicide agents is conceded. Malignant melanoma, however, is not among the list of presumptive diseases associated with exposure to herbicide agents. 38 C.F.R. § 3.309(e). While respiratory cancers are among the list of presumptive diseases associated with exposure to herbicide agents, as outlined below, the Veteran's pulmonary malignancies were not primary lung cancer, nor any other respiratory cancer; rather, his lungs contained metastases of malignant melanoma. Accordingly, the presumptive regulations regarding exposure to herbicide agents do not apply to this appeal. The provisions for presumptive service connection do not preclude a claimant from establishing service connection with proof of actual direct causation, on the basis that in-service exposure to herbicide agents led to the development of the claimed disability after service. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307, 37312 (Fed. Cir. Dec. 17, 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other). 1. Entitlement to dependency and indemnity compensation (DIC) based on service connection for the cause of the Veteran's death In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection is not warranted for the cause of the Veteran's death. In this case, the Veteran died in June 2013. According to his death certificate, immediate cause of death was metastatic malignant melanoma and MPNS sarcoma. At the time of his death, he was not service-connected for any disability. The VA expert opined that the Veteran's metastatic malignant melanoma of the left shoulder at least as likely as not caused the Veteran's death. He explained that the melanoma of the shoulder metastasized to the lung, causing the widespread lung cancer. He analogized it to fluff from dandelions being carried in the wind, spreading weeds to a neighbor's lawn. The examiner stated that it is less likely than not that the MPNS sarcoma of the right frontal forehead, which is a soft tissue sarcoma and presumptively attributed to Agent Orange exposure, caused the Veteran's death. Pathologic evaluation of the lung cancer showed characteristics of melanoma, and characteristics common to both sarcoma and melanoma. No characteristics unique to sarcoma were found. The examiner also opined that the soft tissue sarcoma had less likely than not caused or materially contributed to the Veteran's death. He explained that it was an indolent tumor, with no evidence suggesting it had metastasized prior to removal. The examiner stated that the MPNS sarcoma is less likely than not related to the melanoma or the lung cancer; rather, it is a separate primary disease. The VA Pittsburgh oncologist in October 2019 described the similarities and differences between melanoma and sheath sarcoma and described the pathology of the tumors in the lung staining the same as the melanoma of the left shoulder, which was different from the spindle cell sheath sarcoma of the forehead. See December 2021 VA medical opinion. There is no medical opinion otherwise relating the Veteran's cause of death to his military service. In light of the above, the Board finds that the persuasive weight of the evidence is against finding that the Veteran's cause of death was incurred in service, or that it was caused by his military service, to include exposure to herbicide agents therein. 2. Entitlement to accrued benefits based on a pending claim for service connection for lung cancer, to include widespread metastases to the lung, due to herbicide exposure The 2021 VA examiner opined that the cancer in the Veteran's lungs more likely than not metastasized from the primary melanoma of his left shoulder. Malignant melanoma was first discovered in a lesion of the right forehead. Approximately one year later, in early 2012, abnormal chest x-rays and a lesion of the left anterior shoulder confirmed further melanoma. CT and PET scans in early 2012 showed numerous and bilateral pulmonary metastases increased in size from the original study. The Veteran underwent one round of chemotherapy but was intolerant of the side effects and elected from that point to forego further cancer therapy. As set forth above, the examiner opined that the melanoma of the shoulder metastasized to the lung, ultimately causing his death. The Veteran is not service-connected for melanoma and, as discussed infra, there is no relationship with military service, to include herbicide agent exposure. 3. Entitlement to accrued benefits based on a pending claim for service connection for metastatic malignant melanoma of the left shoulder due to herbicide exposure, claimed as melanoma of the left shoulder The VA examiner opined that the Veteran's malignant melanoma of the left shoulder is less likely than not (less than 50 percent probability) the result of his military service including the conceded Agent Orange exposure. The examiner explained that while claims have been made that choroidal melanoma (of the eye) may be caused by Agent Orange, there is no peer-reviewed medical research showing a causal relationship to be at least 50 percent likely. The National Academy of Sciences in its "Veterans and Agent Orange: Update 11 (2018)," indicated that the available epidemiologic studies are of insufficient quality, consistency, or statistical power to permit a conclusion regarding the presence or absence of an association between exposure to Agent Orange and melanoma. Melanoma is the fifth most commonly diagnosed cancer, with an estimated 91,270 new diagnoses expected in the United States in 2018, accounting for 5.3% of all new cancer cases. The incidence of melanoma is higher in men than in women and increases with age. Melanoma also occurs more frequently in fair-skinned people than in dark-skinned people; the risk for whites is roughly 20 times higher than it is for blacks. Other risk factors include the presence of large numbers of moles (>50), a suppressed immune system, and excessive exposure to ultraviolet (UV) radiation. The committee responsible for the Agent Orange Update concluded that there was inadequate or insufficient information to determine whether there is an association between exposure to the chemicals of interest and skin cancers. The Update 1998 committee considered the literature on melanoma separately from that of non-melanoma skin cancers and found that there was inadequate or insufficient information to determine whether there is an association between the chemicals of interest and melanoma. Additional evidence reviewed by update committees has not changed that conclusion. Few studies of melanoma among veteran populations have been conducted but those that have did not reveal a statistically significant increase in the risk of malignant skin cancer. The medical literature lists risk factors including UV exposure, skin pigmentation, number and type of dysplastic nevi (atypical moles), and family or personal history of melanoma. There was no occupational exposure risk found. Occupational exposure to chemicals has been examined in a number of studies focusing on polychlorinated biphenyls (PCBs), petroleum products, ionizing radiation, and selenium. Although initial analyses showed patterns of increased incidence, no statistically significant occupational risk factors were found after adjusting for known risk factors such as nevus count and sun exposure. See December 2021 VA medical opinion. While the appellant may believe the Veteran's melanoma is related to his military service, she is not competent to provide a nexus in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing and cannot be determined based on mere observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Lacking a nexus, entitlement to service connection for melanoma, to include as secondary to herbicide exposure, on a direct basis is also not warranted. While the Board is sympathetic to this appellant and her family, and is grateful for the Veteran's honorable service, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits...."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). For the above reasons, the evidence is neither evenly balanced nor approximately so with regard as to whether the Veteran's malignant melanoma of the left shoulder is less likely than not (less than 50 percent probability) the result of his military service including the conceded Agent Orange exposure. Rather, the evidence persuasively weighs against the claim. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Thus, the claim for entitlement to accrued benefits based on a pending claim for service connection for metastatic malignant melanoma of the left shoulder due to herbicide exposure, claimed as melanoma of the left shoulder, is denied. J. LEE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.S. Chilcote The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.